In this personal injury case, the plaintiff, Alfred Ocasio, appeals the entry of judgment in favor of the defendant, Federal Express Corporation (FedEx). He argues that the Trial Court {Barry, J.) erred when it allowed the jury to apportion fault to his employer, the United States Postal Service (USPS), and when, despite the jury’s $1,445,700 verdict in his favor, it entered judgment for FedEx after comparing the fault allocated to him to the fault allocated to FedEx. See RSA 507:7-d, :7-e (2010). We hold that while it was not error to allow the jury to apportion fault to the USPS, it was error to deny the plaintiff any recovery against FedEx. We, thus, affirm in part, reverse in part, and remand.
I. Background
A. The Accident
The jury could have found the following facts. The plaintiff was a mail handler for the USPS. His job included pulling, by hand, large canisters filled with mail (air cans) from delivery tractor-trailer trucks. Ball bearings were affixed to the floor of the truck beds, as well as the floor of the loading dock, allowing the USPS employees to roll the air cans from the trucks onto the loading dock and into the USPS facility. The air cans typically weigh between 3,000 and 5,000 pounds.
On February 17, 2002, the plaintiff was pulling air cans from a FedEx tractor-trailer truck when he accidentally stepped into and caught his leg in a gap between the rear of the truck and the loading dock. When the air can he had been pulling continued to roll toward him, the bones of his trapped leg were shattered. Although the plaintiffs leg was saved after reconstruc
B. Recovery Against USPS
Due to his work-related accident, the plaintiff received benefits totaling approximately $80,353 under the Federal Employees’ Compensation Act (the Federal Act). See 5 U.S.C.A. §§ 8101 et seq. (2007). Pursuant to the Federal Act, these benefits are the plaintiff’s exclusive remedy against the USPS. See 5 U.S.C.A. § 8116(c). Moreover, the Federal Act requires the plaintiff to refund to the United States any money he receives as a result of a suit or settlement from a third party, less costs of the suit and a reasonable attorney’s fee, see 5 U.S.C.A. § 8132; see also 20 C.F.R. § 10.711 (2010), or to “assign to the United States any right of action he may have to enforce the liability or any right he may have to share in money or other property received in satisfaction of that liability,” 5 U.S.C.A. § 8131(a)(1).
C. Lawsuit Against FedEx
The plaintiff sued FedEx for damages, alleging, among other claims, that FedEx’s negligence caused his injuries. Consistent with the Federal Act, the plaintiff did not name as a defendant the USPS, his immune employer. Before trial, the plaintiff moved in limine to preclude the jury from apportioning fault for his injuries to the USPS, arguing that if the jury were to do so, he “would essentially be punished for receiving benefits from his negligent employer.” He explained: “Since any recovery [he]... might receive is already bound to be diminished by a worker’s compensation lien, ... it is unfair to additionally reduce that recovery by imputing separate, independent liability upon his employer.” The trial court denied the motion, and gave the jury a special verdict form requiring it to consider whether the USPS was legally at fault to any degree.
The jury found the plaintiffs damages to be $1,445,700, and found that the plaintiff was six percent at fault, FedEx was four percent at fault, and the USPS was ninety percent at fault. Thereafter, FedEx moved for entry of judgment in its favor, arguing that pursuant to RSA 507:7-d, because the plaintiffs percentage of fault (6%) was greater than FedEx’s percentage of fault (4%), the plaintiff was not entitled to recover any damages against FedEx. See RSA 507:7-d, :7-e, 1(b). The trial court agreed, and this appeal followed.
II. Discussion
On appeal, the plaintiff argues that the trial court erred in two respects: first, when it allowed the jury to apportion fault to the USPS, see RSA
A. Apportionment of Fault
1. DeBenedetto
RSA 507:7-e governs apportionment of fault to both claimants and tortfeasors. It is part of a comprehensive statutory framework for apportionment of liability and contribution. DeBenedetto v. CLD Consulting Eng’rs,
I. In all actions, the court shall:
(a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and
(b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party’s liability shall be several and not joint and he shall be liable only for the damages attributable to him.
RSA 507:7-e, 1(a), (b).
In DeBenedetto, we ruled that RSA 507:7-e permits a jury to apportion fault to an immune non-party, such as the USPS. DeBenedetto,
The DeBenedetto plaintiff argued that the trial court’s instruction to the jury to include Christous and the DOT when apportioning fault violated the plain language of RSA 507:7-e, 1(a). Id. at 797. The plaintiff asserted that the words “party” or “parties,” as used in RSA 507:7-e, I, referred only to
The plaintiff in this case argues that our holding in DeBenedetto should not apply to the USPS even though it, like the DOT in DeBenedetto, is an immune non-party who contributed to the plaintiff’s loss. In addressing his arguments, we begin by reviewing the legislative history of RSA 507:7-e, as related in our prior cases, as well as our case law interpreting the statute.
2. Legislative History of RSA 507:7-e and Prior Case Law
RSA 507:7-e was enacted in 1986 as part of the legislature’s “unified and comprehensive approach to comparative fault, apportionment of damages, and contribution.” Jaswell Drill Corp. v. General Motors Corp.,
The joint and several liability rule enabled “injured plaintiffs to seek out and sue only ‘deep pocket’ defendants — tortfeasors with significant assets but a potentially low degree of fault who by virtue of joint and several liability may be responsible for the entire amount of recoverable damages.” Id. at 798-99. As a result, numerous jurisdictions enacted legislation to ameliorate the inequities suffered by low fault, “deep pocket” defendants. Id. at 799.
New Hampshire followed this trend in 1989 when it amended RSA 507:7-e “to treat fairly those entities which may be unfairly treated” under joint and several liability. Id. (quotation omitted); see N.H.S. JOUR. 286 (1989). Recognizing that “manufacturers, professional and public agencies . . . become targets for damage recoveries because of their potential monetary resources rather than their fault,” N.H.S. JOUR. 286 (1989), the legislature amended RSA 507:7-e to impose only several liability on parties who are less than fifty percent at fault. See RSA 507:7-e, 1(b).
Following this amendment, we had occasion to consider whether RSA 507:7-e permits a jury to apportion fault between a settling tortfeasor and a non-settling tortfeasor. See Nilsson v. Bierman,
In Nilsson, we expressly declined to reach the issue of whether an immune tortfeasor was a “party” for apportionment purposes. Id. at 397. Relying upon the reasoning of courts in jurisdictions with comparative fault and apportionment schemes similar to ours, we answered this question in the affirmative in DeBenedetto. See DeBenedetto,
The legislature’s response to DeBenedetto, although not controlling, is instructive. See Franklin v. Town of Newport,
In 2009 and 2010, legislation was introduced to accomplish the same goal. See N.H.H.R. Rep. 875-76 (2009); N.H.H.R. Rep. 1145 (2010). The 2009 measure would have amended RSA 507:7-e to add a new paragraph under
The failure of the 2009 legislation also reveals the legislature’s specific intent that RSA 507:7-e applies to immune employers. See N.H.H.R. Rep. 875-76 (2009). As amended by a legislative committee, the 2009 bill would have “except[ed] the amount of damages attributed to the employer pursuant to the apportionment of damages provisions under RSA 507:7-e from the employer’s lien on damages and benefits recovered from third persons by employees who have received workers’ compensation.” Id. at 876. Representative William L. O’Brien, speaking on behalf of those opposed to the amendment, explained:
The change proposed by this amended legislation would violate a fundamental premise of workers compensation law. It would do this by essentially taking away the employers’ present immunity from lawsuits given in exchange for the employers having to pay set benefits for lost wages and medical costs for all workplace injuries, even when the employer is not negligent, and with the understanding that the employers’ insurers will get back those payments if a third party’s negligence caused the accident.
Id. Another legislator attempted to amend the legislation to exempt immune employers from apportionment under RSA 507:7-e. Id. This amendment-failed and the entire measure was “laid on the table,” with no further action taken. Id.
3. Whether DeBenedetto Applies to USPS
Against this backdrop, we now consider the plaintiffs arguments as to why DeBenedetto should not govern this case. The plaintiff does not argue that we should overrule DeBenedetto-, rather, in effect, he seeks an exception to the holding in DeBenedetto that liability may be apportioned to immune non-parties.
a. Whether Immune Employers Should Be Treated Differently
The plaintiff first argues that immune employers are different from other immune tortfeasors and, thus, different rules should govern apportioning fault to them. He observes that immune employers, unlike other immune
We disagree that apportioning fault to immune employers affects in any way the benefits and burdens under either the Federal or State Act. Both acts are based upon the fundamental quid pro quo of employer tort immunity in exchange for no-fault workers’ compensation benefits. See Tothill v. Estate of Center,
Allocating fault to an immune employer does not disturb’ this quid pro quo relationship between employee and employer or the legislative policy underlying it. A plaintiff may still obtain benefits, without having to prove the employer’s negligence, and the employer is still immune from liability. Indeed, “[t]o immunize employers from fault allocation in third-party tort suits would go against the spirit of the bargain between employers and employees.” Mack Trucks, Inc. v. Tackett,
Contrary to the plaintiffs assertions, allocating fault to an employer does not destroy, or even affect, the employer’s immunity from suit. Immunity “does not mean that a party is not at fault; it simply means that the party cannot be sued.” Pinnacle Bank v. Villa,
The plaintiff’s arguments are based upon his mistaken assumption that his statutory right to bring a third party action is intended to afford him full recovery for his injuries'. To the contrary, under the State Act, the employee’s right to bring a third party action and the corresponding right of the employer to be reimbursed from any recovery for the amount of compensation benefits paid accomplish the legislative purpose of precluding “double recovery.” See Rooney v. Fireman’s Fund Ins. Co.,
We are not persuaded that “fairness” dictates that a non-employer defendant, such as FedEx in this case, should be responsible for paying a plaintiff’s entire damage award, particularly when the non-employer is only minimally at fault and the immune employer is nearly completely at fault. As we observed in DeBenedetto, “[t]here is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss.” DeBenedetto,
More importantly, requiring FedEx to bear the entire cost of the plaintiff’s damages would contravene the legislative intent of RSA 507:7-e, which “is to protect minimally liable defendants.” Rodgers v. Colby’s Ol’ Place,
Thus, contrary to the plaintiff’s assertion, we do not conclude that immune employers should be treated differently than other immune tortfeasors.
b. Constitutional Claims
The plaintiff next contends that apportioning fault to the USPS violated various of his state constitutional rights. First, he argues that including the USPS in the apportionment of fault violated his due process rights under Part I, Article 15 of the New Hampshire Constitution. FedEx argues that the plaintiff has failed to preserve this claim for our review. We assume, without deciding, that it was preserved, and address its merits.
The plaintiff argues that applying the apportionment of damages statute to immune employers impermissibly reallocates the benefits and burdens under workers’ compensation laws. His argument is based upon a line of cases addressing the constitutionality of amendments to the State Act. See, e.g., Young v. Prevue Products, Inc.,
The plaintiff next asserts that apportioning fault to the USPS violated his right to equal protection under Part I, Articles 2 and 12 of the New Hampshire Constitution. The plaintiff argues that RSA 507:7-e, I, “causes [injured workers] ... to be treated differently from other injury victims.” Relying upon an equal protection test that we have overruled, see Carson v. Maurer,
Part 1, Article 14 of the New Hampshire Constitution provides: Every subject of this state is entitled to a certain remedy, by having recourse to the laws, for all injuries he may receive in his person, property, or character; to obtain right and justice freely, without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.
N.H. CONST, pt. I, art. 14. The purpose of this provision is to make civil remedies available and to guard against arbitrary and discriminatory infringements upon access to courts. DeBenedetto,
The plaintiff argues that RSA 507-7:e, as applied to injured workers, eliminates the right to a remedy guaranteed under our constitution. We disagree. Contrary to his assertions, Part I, Article 14 “does not guarantee that all injured persons will receive full compensation for their injuries.” Id. (emphasis added); see Estate of Cargill v. City of Rochester,
We rejected a similar claim in DeBenedetto. There, we concluded that apportioning fault to immune non-parties does not violate Part I, Article 14 because it does not “by its language, restrict a plaintiffs right to seek a remedy for personal injuries, limit a plaintiffs ability to bring an action against any party, or cap the amount of damages that a plaintiff may seek.” DeBenedetto,
The plaintiffs final constitutional argument is that the application of RSA 507:7-e in this ease violated the Supremacy Clause. The Supremacy Clause of Article VI of the Federal Constitution gives Congress the power to preempt state law. New Hampshire Health Care Assoc. v. Governor,
The plaintiff contends that “[t]he invocation of employer fault on the basis of a state statute would contradict the clear employer immunity created in the . . . federal statute” and would “undermine” the statutory right “of federal workers to third party actions and the federal government’s right to be reimbursed for worker’s compensation benefits paid out of any third party recovery.” Although the plaintiff couches his arguments as arising under the Supremacy Clause, he merely reiterates arguments that we have already addressed.
B. Comparative Fault
The plaintiffs second claim of error concerns the trial court’s failure to award him any recovery against FedEx after it compared his percentage of fault to FedEx’s percentage of fault pursuant to RSA 507:7-d, the comparative fault statute. We review the trial court’s construction of RSA 507:7-d de novo. See Kenison v. Dubois,
Contributory fault shall not bar recovery in an action by any plaintiff or plaintiffs legal representative, to recover damages in tort for death, personal injury or property damage, if such fault was not greater than the fault of the defendant, or the defendants in the aggregate if recovery is allowed against more than one defendant, but the damages awarded shall be diminished in proportion to the amount of fault attributed to the plaintiff by general verdict. The burden of proof as to the existence or amount of fault attributable to a party shall rest upon the party making such allegation.
(Emphases added.)
The trial court reasoned that recovery was not permitted against the USPS due to its status as an immune party, and therefore that the USPS’s fault could not be aggregated with FedEx’s fault. Accordingly, because the jury determined FedEx’s fault to be four percent and the plaintiff’s to be six percent (and, thus, greater than FedEx’s fault), the trial court entered judgment on FedEx’s behalf. This was error.
Generally, when construing statutes we first examine the language used, and, where possible, we ascribe the plain and ordinary meanings to words used. In re Keelin B.,
We cannot construe the words “defendant” and “party” in RSA 507:7-d in isolation, but must construe them both in the context of the overall statutory scheme, In re Keelin B.,
Because RSA 507:7-d and RSA 507:7-e are part of an integrated statutory scheme, the word “party” in RSA 507:7-d must have the same
Moreover, because RSA 507:7-d is the companion statute to RSA 507:7-e, we conclude that the aggregation of fault described in RSA 507:7-d includes the fault of all entities to whom fault has been apportioned, regardless of whether any are immune from liability. It follows that the phrase “defendants in the aggregate if recovery is allowed against more than one defendant,” as used in RSA 507:7-d, applies to all entities whose fault has been apportioned under RSA 507:7-e. Accordingly, it was error for the trial court not to aggregate FedEx’s fault with the fault of the USPS because both FedEx and the USPS were parties to the occurrence that gave rise to the plaintiffs injuries and fault was apportioned to them both. See id. at 803, 804.
To construe RSA 507:7-d otherwise would render it incompatible with RSA 507:7-e. If we were to construe the words “party” and “defendant” to refer only to the defendant named in a plaintiffs civil suit, a defendant could have fault apportioned to an immune party under the apportionment statute, RSA 507:7-e, but could then shield itself from liability for any damages under the comparative fault statute, RSA 507:7-d, even where it is a wrongdoer. Such a construction would undermine the purpose underlying RSA 507:7-d, which is to “allocate more equitably the responsibility for injuries due to negligent conduct on the part of parties on both sides of a lawsuit.” Allen v. Dover Co-Recreational Softball League,
Here, the trial court should have aggregated the USPS’s fault (ninety percent) with FedEx’s fault (four percent) for the purpose of determining whether the plaintiff’s fault (six percent) barred him from recovery. See RSA 507:7-d. Because the plaintiff’s fault is less than the aggregated fault of the USPS and FedEx, he is not barred from recovery, see id.; however, because FedEx is less than fifty percent at fault, the plaintiff’s damages are limited to the damages attributable to FedEx, see RSA 507:7-e, 1(b), which is four percent of the total damages found by the jury. Thus, judgment should have been awarded in the plaintiff’s favor against FedEx in the amount of four percent of the total damages found by the jury ($1,445,700); that is, in the amount of $57,828, plus statutory interest and allowable costs.
As the dissent concedes, DeBenedetto is dispositive of the issue before us. Nevertheless, the dissent urges us to overrule DeBenedetto a mere five years after it was decided, and despite the fact that the plaintiff makes no such request.
“We do not lightly overrule a prior opinion.” State v. Duran,
Upon consideration of all of these factors, we cannot conclude that overruling DeBenedetto is warranted. Permitting a jury to consider “nonparties,” such as immune tortfeasors, when apportioning fault is neither an “abandoned doctrine,” nor impractical or unworkable. To the contrary, as noted above, such is the rule in many jurisdictions. Moreover,
The dissent makes no argument specifically directed to any of the Jacobs factors. Instead, it contends that our ruling in DeBenedetto is “unconstitutional” in that it violates substantive due process. In súpport of this contention the dissent cites Plumb v. Fourth Jud. Dist. Court,
Neither are we persuaded by the dissent that DeBenedetto should be overruled on the basis of its interpretation of the relevant statutes. As we have explained, we interpret a statute to lead to a reasonable result and review a particular provision, not in isolation, but together with all associated sections. See Appeal of Thermo-Fisher Scientific,
Affirmed in part; reversed in part; and remanded.
retired, specially assigned under RSA 490:3, dissenting. The plaintiff, Alfred Ocasio, appeals from the entry of a judgment in favor of the defendant, Federal Express Corporation (FedEx). Because of the trial court’s decision, the plaintiff received nothing, despite an award of $1.4 million by the jury. In my view, this fundamentally unfair result should not be allowed to stand. Respectfully, I dissent.
The plaintiff was a mail handler for the United States Post Office (USPS). His job included removing mail that was transported in large, heavy containers known as “air cans.” On February 17, 2002, the plaintiff was gravely injured while removing air cans from a FedEx tractor trailer truck driven by Adam Thompson. Thompson backed his truck up to the loading and receiving dock and secured his vehicle. Although he thought that the back of the truck was properly aligned with the loading dock, there was, in fact, a gap between the truck and the loading dock. While pulling an air can from the FedEx truck with another employee, the plaintiff’s right leg dropped into the gap, and the air can rolled into his leg, shattering it. Although the plaintiff’s leg was saved after reconstructive surgery, it is of limited use. He cannot stand or walk for very long; he cannot lift and carry heavy things; and he cannot run. He has since lost his job at the USPS.
The issue on appeal is whether the trial court erred in two respects: first, when it instructed the jury to apportion fault to the USPS, even though the USPS was not a named party in the lawsuit and was immune from liability under the Federal Employees’ Compensation Act, see 5 U.S.C.A. § 8116(c) (2007); and, again, when it ruled that the plaintiff could not recover against FedEx because the jury found that he was more at fault than FedEx, see RSA 507:7-d (2010). Because I believe that the trial court should not have required the jury to apportion fault to the USPS and because this error would necessitate a new trial, I address only this error.
The trial court, understandably, relied upon this court’s decision in DeBenedetto when it instructed the jury to apportion fault to the USPS. See DeBenedetto v. CLD Consulting Eng’rs,
The plaintiff argued that the trial court’s instruction to the jury to include Christous and the DOT when apportioning fault violated the plain language of RSA 507:7-e, 1(a) (2010). Id. at 797. RSA 507:7-e (2010) provides, in pertinent part:
I. In all actions, the court shall:
(a) Instruct the jury to determine, or if there is no jury shall find, the amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties; and’
(b) Enter judgment against each party liable on the basis of the rules of joint and several liability, except that if any party shall be less than 50 percent at fault, then that party’s liability shall be several and not joint and he shall be liable only for the damages attributable to him.
RSA 507:7-e, 1(a), (b) (emphasis added).
The plaintiff argued that the words “party” or “parties,” as used in RSA 507:7-e, I, referred only to the actual parties to the action. DeBenedetto,
“The doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of judicial will with arbitrary and unpredictable results.” Jacobs v. Director, N.H. Div. of Motor Vehicles,
Because it was not argued on appeal, the court in DeBenedetto did not consider whether interpreting RSA 507:7-e, 1(a), (b), to require a jury to apportion liability to, and the court to enter judgment against, non-parties violated substantive due process. In my opinion, it does.
I first address the constitutionality of RSA 507:7-e, I, as interpreted in DeBenedetto, under the State Constitution, see State v. Ball,
“[S]ubstantive due process prevents the government from engaging in conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.” State v. Furgal,
I agree with the conclusion in DeBenedetto that apportioning liability among those responsible for a plaintiff’s damages may involve a legitimate governmental interest. See DeBenedetto,
Moreover, “[t]he greater the degree of fault that is assigned to [a] nonpart[y], the greater the reduction in the [plaintiffs] recovery.” Id. Under RSA 507:7-e, 1(b), each party is jointly and severally liable for the plaintiffs damages, unless the party is less than fifty percent at fault. In that case, the party’s liability is several only and the party is liable “only for the damages attributable to him.” RSA 507:7-e, 1(b). In this case, had FedEx been found fifty percent or more at fault, FedEx would have been jointly and severally liable for the entire $1.4 million verdict. Because, however, the jury was instructed to apportion fault to the USPS, it found that FedEx was only four percent at fault.
I believe that apportioning liability to an immune employer, who also has a statutory right to receive a portion of any recovery the plaintiff may obtain from a third party, is particularly not rationally related to the State’s legitimate objective of fairly apportioning liability among parties. See 5 U.S.C.A. § 8132 (2007) (under Federal Employees’ Compensation Act, if beneficiary entitled to compensation from United States for injury or death to employee receives money or other property as a result of suit or settlement, after deducting therefrom the costs of suit and a reasonable attorney’s fee, beneficiary must refund to United States the compensation United States paid); RSA 281-A:13, 1(b) (2010) (under New Hampshire Workers’ Compensation Law, employer or its carrier has lien on amount of damages recovered by employee from another person, less expenses and costs of action). In such a case, the plaintiff’s recovery from a third-party tortfeasor is unjustifiably reduced twice, once because the jury has been allowed to apportion fault to the immune employer, and again because the immune employer must be reimbursed from whatever recovery the plaintiff receives from the third party. See Best v. Taylor Mach. Works,
For the above reasons, therefore, I conclude that interpreting RSA 507:7-e, I, to require apportionment of fault or liability to non-parties violates substantive due process under the New Hampshire Constitution. Accordingly, I need not consider whether it also would violate the Federal Constitution. See Ball,
Furthermore, in my view, not only is the DeBenedetto court’s interpretation of RSA 507:7-e, I, unconstitutional, it is also wrong as a matter of statutory interpretation. This court is the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Coan v. N.H. Dep’t of Env’t Servs., 161 N.H. 1, 5 (2010). The court first
In my opinion, the plain and ordinary meaning of the words “party” and “parties” as used in RSA 507:7-e, I, is confined to litigants — those who are currently or have been previously before the court in a particular action — and does not extend to non-parties. RSA 507:7-e, 1(a) specifically refers to the “amount of damages to be awarded to each claimant and against each defendant in accordance with the proportionate fault of each of the parties.” (Emphases added.) Thus, as used in RSA 507:7-e, 1(a), the word “parties” refers to “each claimant” and “each defendant.” RSA 507:7-e, 1(b) instructs a trial court to “[e]nter judgment against each party.” (Emphasis added.) A court cannot enter judgment against a non-party. Accordingly, as used in RSA 507:7-e, 1(b), the word “party” must also refer to each claimant and each defendant.
Other sections of RSA 507:7-e further evince this legislative intent. For instance, like RSA 507:7-e, 1(b), RSA 507:7-e, 1(c) also refers to granting “judgment against. . . parties.” Additionally, RSA 507:7-e, II directs that “the damages attributable to each party shall be determined by general verdict, unless the parties agree otherwise” and cautions that questions to the jury must be clear and concise “and shall not prejudice the rights of any party to a fair trial.” (Emphasis added.) Necessarily only a litigant can agree or disagree as to the form of the verdict slip presented to the jury, and only a litigant has a right to a fair trial. The language used throughout RSA 507:7-e, strictly interpreted, makes clear that for apportionment purposes, the words “party” and “parties” refer only to the parties to the action. See Bradford v. Herzig,
Because I believe that DeBenedetto should be overruled, and that RSA 507:7-e, I, should not be interpreted to require apportionment of liability to non-parties, I would hold that the trial court erred by instructing the jury to apportion liability to the USPS. I would therefore vacate and remand for a new trial on liability only. As there has been no appellate challenge to the amount of the jury verdict, a new trial on damages would not be required.
In conclusion, it is my view that the substantial statutory and constitutional issues that have arisen in the wake of the legislature’s adoption of RSA 507:7-e, I, have led the court into a jungle of unanticipated and, perhaps, unintended consequences. Plaintiffs’ rights to a fair recovery have been greatly diminished in the process.